1998 (3) TMI 288 - AT - Customs

Summary

Issues:
- Importer's eligibility as an Actual User (Industrial) under the Import-Export Policy.
- Denial of benefit under Notification 89/85 due to lack of drug license.
- Confiscation of goods and imposition of penalty.
- Applicability of the notification for duty exemption.

Analysis:

The judgment involves two appeals, one by the Commissioner of Customs and the other by the importer, regarding the clearance of a consignment of rifamycin-S under the Open General Licence as per the Import-Export Policy. The dispute arose as the importer did not possess a license under the Drugs and Cosmetics Act at the time of import, leading to a contention by the department that the importer was not an Actual User (Industrial). The department proposed confiscation of goods and penalty imposition, along with denial of benefits under Notification 89/85. The importer argued its eligibility as an actual user based on a license from the Ministry of Petroleum and Chemicals and an application for a drug license from the Food & Drugs Administration. The Collector, however, ruled against the importer, noting the absence of the required license at the time of import.

The Collector's decision was challenged on two grounds: the absence of a specific order regarding confiscation and the extension of notification benefits to the goods. During the appeal, the issue of whether the importer qualified as an Actual User (Industrial) was extensively debated. However, the tribunal found it unnecessary to delve into this aspect, as the Collector acknowledged the importer's compliance with necessary requirements post-import. The tribunal emphasized that the importer had the intent to manufacture Rifampicin with official approvals, even though the required license was obtained after the import. Consequently, the tribunal inferred that since the Collector did not order confiscation due to mitigating factors, penalty imposition was unwarranted.

Regarding the applicability of the notification for duty exemption, the department argued that the importer, lacking a drug license at the time of import, could not avail the benefit. However, the tribunal noted that the importer intended to use the goods for Rifampicin manufacture and obtained the necessary license post-import. As the notification did not specify a time limit for manufacturing the final product, the tribunal concluded that the importer's intent at the time of import sufficed for availing the benefit. Consequently, the tribunal dismissed one appeal and allowed the other, affirming the importer's eligibility for notification benefits post-import compliance with licensing requirements.